B-121521, SEP. 28, 1956

B-121521, SEP. 28, 1956

TO F. E. VAN ALSTINE, ESQUIRE, UNITED STATES ATTORNEY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1956, WITH ENCLOSURES, RELATIVE TO THE REQUEST OF THE LAW FIRM OF FISHER AND FISHER, 1002-1004 AMERICAN BUILDING, CEDAR RAPIDS, IOWA, AS ATTORNEYS FOR ONE MR. ALFRED WALL, FOR A RELEASE UNDER 28 U.S.C. 2410 (D) OF AN ALLEGED GOVERNMENT LIEN ON CERTAIN REAL PROPERTY AS A RESULT OF JUDGMENT RENDERED IN FAVOR OF THE UNITED STATES IN THE ABOVE-CAPTIONED CASE. FOR YOUR INFORMATION, THIS MATTER, PRIOR TO RECEIPT OF YOUR LETTER WAS THE SUBJECT OF OUR LETTER OF OCTOBER 12, 1954, B-121521, COPY ATTACHED, TO MR. FRED C. FISHER, JR.

THE RECORD BEFORE OUR OFFICE INDICATES THAT O. G. AND LEOLA M. HEATHMAN, HUSBAND AND WIFE, OWNED CERTAIN REAL PROPERTY IN LINN COUNTY, IOWA. SIX JUDGMENTS WERE ENTERED AGAINST THE HEATHMANS, THE LAST, ON JANUARY 2, 1953, BEING IN FAVOR OF THE UNITED STATES UNDER THE ABOVE-CAPTIONED CASE. HOWEVER, PRIOR TO THE ENTERING OF THE JUDGMENT IN FAVOR OF THE UNITED STATES, EXECUTION WAS ISSUED UNDER A JUDGMENT ENTERED IN FAVOR OF ROY W. TAPAGER ON OCTOBER 11, 1950, AND LEVY WAS MADE ON THIS REAL PROPERTY ON APRIL 29, 1952. THE PROPERTY WAS SOLD BY THE SHERIFF ON JUNE 6, 1952, THE JUDGMENT CREDITOR HIMSELF BIDDING ON THE PROPERTY AND RECEIVING THE SHERIFF'S CERTIFICATE. MR. TAPAGER ASSIGNED THE SHERIFF'S CERTIFICATE TO MRS. L. L. FLUEGEL, WHO SUBSEQUENTLY RECEIVED THE SHERIFF'S DEED TO THE PROPERTY. WHILE THE CHAIN OF TITLE FOLLOWING MRS. FLUEGEL IS NOT SHOWN, IT APPEARS THAT THE HEATHMANS MOVED OUT OF THE PROPERTY AND ABANDONED IT TO THEIR SON IN-LAW, ALFRED WALL, WHO IS NOW OCCUPYING AND BUYING THE PROPERTY.

TITLE 28 OF THE U.S.C. SECTION 2410 (D), PROVIDES AS FOLLOWS:

"/D)WHENEVER ANY PERSON HAS A LIEN UPON ANY REAL OR PERSONAL PROPERTY, DULY RECORDED IN THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED, AND A JUNIOR LIEN, OTHER THAN A TAX LIEN, IN FAVOR OF THE UNITED STATES ATTACHES TO SUCH PROPERTY, SUCH PERSON MAY MAKE A WRITTEN REQUEST TO THE OFFICER CHARGED WITH THE ADMINISTRATION OF THE LAWS IN RESPECT OF WHICH THE LIEN OF THE UNITED STATES ARISES, TO HAVE THE SAME EXTINGUISHED. IF AFTER APPROPRIATE INVESTIGATION, IT APPEARS TO SUCH OFFICER THAT THE PROCEEDS FROM THE SALE OF THE LIEN OF THE UNITED STATES, OR THAT THE CLAIM OF THE UNITED STATES HAS BEEN SATISFIED OR BY LAPSE OF TIME OR OTHERWISE HAS BECOME UNENFORCEABLE, SUCH OFFICER SHALL SO REPORT TO THE COMPTROLLER GENERAL WHO MAY ISSUE A CERTIFICATE RELEASING THE PROPERTY FROM SUCH LIEN.'

WE HAVE NO AUTHORITY, OF COURSE, TO ISSUE A CERTIFICATE OF RELEASE OF A LIEN OF THE UNITED STATES EXCEPT UPON THE CONDITIONS EXPRESSLY STIPULATED IN THE ABOVE STATUTE. 17 COMP. GEN. 180. ASIDE FROM THE FACT THAT THE PROCEDURAL REQUIREMENTS OF THE STATUTE DO NOT APPEAR TO HAVE BEEN MET IN THAT THE OFFICER CHARGED WITH ADMINISTRATION OF THE LAWS UNDER WHICH THE ALLEGED GOVERNMENT LIEN AROSE HAS NOT FURNISHED THE REPORT TO THE COMPTROLLER GENERAL REQUIRED BY THE STATUTE, IT WILL BE OBSERVED THAT TWO OF THE NECESSARY CONDITIONS STIPULATED THEREIN ARE THAT THE APPLICANT ,HAS A LIEN" UPON THE PROPERTY, DULY FILED OF RECORD, AND THAT A "JUNIOR LIEN, OTHER THAN A TAX LIEN, IN FAVOR OF THE UNITED STATES ATTACHES TO SUCH PROPERTY.' IN THE PRESENT CASE, THE APPLICANT, MR. WALL, APPEARS TO BE THE OCCUPANT AND PURCHASER (OR OWNER) OF THE PROPERTY AND NOT THE HOLDER OF A LIEN UPON THE PROPERTY. MOREOVER, SINCE THE LETTER OF APRIL 25, 1956, FROM FISHER AND FISHER, COPY FORWARDED WITH YOUR LETTER, STATES THAT THE JUDGMENT IN FAVOR OF THE UNITED STATES, UNDER THE ABOVE-CAPTIONED CASE WAS A PERSONAL ONE ONLY, BASED UPON A PROMISSORY NOTE, AND IN NO WAY REFERRED TO THE REAL PROPERTY HERE INVOLVED, AND SINCE THE RECORD SHOWS THAT THE REAL PROPERTY HAD THEN ALREADY BEEN SOLD TO SATISFY A PRIOR LIEN AND WAS NO LONGER THE PROPERTY OF THE HEATHMANS, THERE IS CONSIDERABLE DOUBT ON THE PRESENT RECORD THAT THE JUDGMENT IN FAVOR OF THE UNITED STATES AGAINST THEM EVER BECAME A LIEN ON THE PROPERTY. ALSO, IF THE JUDGMENT DID BECOME A LIEN ON THE REALTY, IT IS NOT EVIDENT HERE THAT THE LIEN WAS NOT DISCHARGED BY OPERATION OF LAW UPON ENFORCEMENT OF THE LIEN UNDER THE EARLIER TAPAGER JUDGMENT.

ACCORDINGLY, ON THE BASIS OF THE RECORD NOW BEFORE OUR OFFICE, WE ARE WITHOUT AUTHORITY TO ISSUE THE RELEASE REQUESTED.